BEFORE THE IOWA CIVIL RIGHTS COMMISSION RUTH MILLER (CLAY), Complainant,

VS.

PAGE COUNTY SHERIFF'S DEPT., PAGE COUNTY BOARD OF SUPERVISORS, PAGE COUNTY GRIEVANCE REVIEW BOARD, and RON FRANKS, SHERIFF, Respondents.

RULINGS ON OBJECTIONS TO EVIDENCE

1. A number of objections were made to the admissibility of either testimony or exhibits. Many of these objections were simply noted in the record because evidence which would be excluded under the rules of evidence in a jury trial may be admitted in administrative hearings. Iowa Code § 17A.14(l). When this procedure is followed, the objection, if it is found to be valid, may affect the weight given to the exhibit or testimony objected to, but the exhibit or testimony is admitted in the record and no ruling on the validity of the objection is made in the proposed decision.

2. Other testimony and exhibits were admitted subject to the objections with the understanding that the objections to them would be ruled upon in this decision. Iowa Admin. Code § 4.2(5). This procedure is often followed when one of the objections is that the proffered evidence is irrelevant, immaterial, or unduly repetitious or when the objection raises some other ground upon which the evidence may be excluded, such as the violation of a discovery rule.

See Iowa Code § 17A.13(l), 17A.14(l) (1989); Iowa R. Civ. Pro. 134 (b)(1)(B).

3. The Respondents objected to any testimony of Debra Kidney "about a different time and different place that has nothing at all to do with Ruth Miller as being not relevant and material in the issues that Ruth Miller has raised on her claim." (Tr. at 146). They objected to "anything that she's going to say that doesn't have anything to do with Ruth Miller or the time in which Ruth Miller was employed by the Page County Sheriff's office." (Tr. at 147) The Commission's response was that, although Debra Kidney may not have been present when Ruth Miller was harassed, her testimony was necessary to demonstrate a pattern or practice of harassment at the Page County Sheriff's department. (Tr. at 147).

4. The testimony of Ms. Kidney was concerned with incidents of alleged sexual harassment by Sheriff Franks at the Page County Sheriff's Department which occurred prior to the employment of Ruth Miller. In determining whether such testimony should be admitted, it must be remembered that:

The effects of blanket evidentiary exclusions can be especially damaging in employment discrimination cases, in which plaintiffs must face the difficult task of persuading the fact-finder to disbelieve an employer's account of its own motives. . . . Circumstantial proof of discrimination typically includes unflattering testimony about the employer's history and work practices-evidence which in other kinds of cases may well unfairly prejudice the jury against the defendant. In discrimination cases, however, such background evidence may be critical for the jury's assessment of whether a given employer was more likely than not to have acted from an unlawful motive.

Because an employer's past discriminatory policy and practice may well illustrate that the employer's asserted reasons for disparate treatment are a pretext for intentional discrimination, this evidence should normally be freely admitted at trial.

Hawkins v. Hennepin Technical Center, 900 F.2d 153, 155-56, 52 Fair Empl. Prac. Cases 885, 687 (8th Cir. 1990)(sex discrimination and retaliation case).

5. Ms. Kidney's testimony should be admitted for three reasons. First, "[e]ven though the circumstances surrounding [the witness'] complaints may have occurred before the time period covered by [the complainant's] complaint, her testimony is relevant to demonstrate that harassment may be defendant's.-it's standard operating procedure rather than an unusual or isolated practice." Goodall v. Sedgwick County, 43 Fair Empl. Prac. Cas. 1683, 1685 (D. Kan. 1985). See Bundy v. Jackson, 641 F.2d 934, 940 & n.3 (D.C. Cir. 1981); Rudow v. New York City Commission on Human Rights, 474 N.Y.S.2d 1005, 1009, 123 Misc.2d 709 (N.Y. Sup. Ct. 1984). Second, such testimony is relevant for determining what were the Respondents' reasons for terminating the Complainant. Phillips v. Smalley Maintenance Services, Inc., 711 F.2d 1524, 1532 (11th Cir. 1983)(such testimony is allowed under Federal Rule of Evidence 404(b) to show employer's ,'motive. . . intent ... [or] plan. . ." Equivalent rule in Iowa is Iowa R. Evid. 404(b)). Third, the Commission is entitled to present evidence of an "atmosphere of condoned sexual harassment in a workplace" because such an atmosphere "increases the likelihood of retaliation for complaints in individual cases." Hawkins v. Hennepin Technical Center, 900 F.2d 153, 156, 52 Fair Empl. Prac. Cases 885, 887 (8th Cir. 1990).

6. Ms. Kidney's testimony is not only relevant for the reasons stated, its probative value is greater than any prejudicial effect it may have. Evidence of "other . . . wrongs, or acts" is admissible under Iowa Rule of Evidence 404(b) when the evidence is relevant and its prejudicial effect does not substantially outweigh its probative value. State v. Plaster, 424 N.W.2d 226, 229 (Iowa 1988). Respondent's objections to Ms. Kidney's testimony are overruled.

7. Complainant's Exhibits numbers 51 and 52 are letters from Complainant Miller's therapist to Assistant Attorney General Autry. Exhibit 51 was offered to show the number of visits which the Complainant had with her therapist from 1986 through 1989. (Tr. at 223). Exhibit 52 was offered solely to corroborate the Complainant's testimony to the effect that she had received therapy and had discussed the termination, Sheriff Franks, and the harassment with the therapist at some of these sessions. (Tr. at 223, 228). Exhibit 51 was objected to on the grounds that it was inappropriate to show the total number of therapy sessions without showing the number of sessions at which the problems with the sheriff was discussed. (Tr. at 223-24). This objection is overruled as it goes to the exhibit's weight and not to its admissibility.

8. Exhibits 51 and 52 were also objected to on the grounds that they constituted expert testimony which was introduced without a ten-day notice to the Respondents as provided for in Iowa Code section 17A.14 (apparently this was meant as a reference to 17A.13) and Iowa Administrative Code section 1614.3(17). (Tr. at 225). In addition they were objected to because they were not verified and therefore inadmissible under 17A.14(l) and (3). (Tr. at 225). Respondents also argued that these letters constituted unsworn testimony given in violation of Iowa Administrative Code section 161-4.3(11). (Tr. at 225). Respondent also urged that these exhibits constituted expert opinion offered without the expert having been qualified. (Tr. at 226). Respondents further objected to the letters as being inadmissible as offers of expert opinion,is on the truthfulness of Ruth Miller and Sheriff Franks. (Tr. at 226). Finally, they were objected to as expressing expert opinions on ultimate issues of fact in this case. (Tr. at 226).

9. In ruling on these objections, the limited purpose for which these exhibits were offered must be kept in mind. No opinions of any kind are stated in Exhibit 51. It simply lists the number of therapy sessions Ruth Miller attended for each of the years 1986-89. Although opinions are expressed in Exhibit 52, it was not offered for those opinions but, as previously noted, for the purposes of showing certain facts, i.e. that the Complainant had received therapy and had discussed the termination, Sheriff Franks, and the harassment. with the therapist. Under these circumstances, all objections to these exhibits based on the erroneous premise that they were offered for the opinions, expert or otherwise, expressed therein are overruled.

10. Iowa Code sections 17A.14 (1) and (3) do not require that exhibits be verified. Nor are these exhibits "testimony given at a commission hearing" which is governed by Iowa Administrative Code section 1614.3(11). "Testimony properly means only such evidence as is delivered by a witness on the trial of a cause, either orally or in the form of affidavits or depositions." BLACK'S LAW DICTIONARY 1324 (5th ed. 1979). Therefore these objections are also overruled. Complainant's Exhibits numbers 51 and 52 remain in the record for the limited purposes for which they were offered.

11. During the course of the hearing, testimony was elicited from Glenda Donahue on a sexual relationship she had with Sheriff Franks prior to the time he became sheriff. (Tr. at 350). The testimony was offered by Complainant to "show that there was a relationship, there was a hiatus from the relationship, and it resumed. " (Tr. at 350). This testimony was objected to by Respondents on grounds of relevancy and materiality. (Tr. at 350-51). Glenda Donahue's testimony concerning her sexual relationship with Sheriff Franks which ended prior to the time he became sheriff does not tend to prove or disprove a fact of consequence in this case. Iowa R. Evid. 401. Therefore this testimony is stricken from the record as it is irrelevant. Iowa Code § 17A.14(l).

12. Complainant's Exhibit J purports to be a copy of a letter and envelope from Erlinda Foster to the Iowa Civil Rights Commission. It was offered to impeach the credibility of hearsay statements by Erlinda Foster made within Respondents' Exhibit 147B, which had been previously admitted in evidence. (Tr. at 576-77, 746, 747). Exhibit J was objected to as being irrelevant as it was not properly identified.

13. The Commission's representative offered a professional statement to the effect that he "Xeroxed this document from the case file at the Iowa Right Commission, that Erlinda Foster filed . . . with the Commission against the Page County sheriff and that case was administratively closed after preliminary screening." (Tr. at 753). A "professional statement" by an attorney may, of course, be considered a evidence of the facts presented in, the statement. Se State v. Williams, 315 N.W.2d 45 (Iowa 1982).

14. A letter may be authenticated by indirect o circumstantial proof, G. Richter, Evidentiary Trial Objections 94 (1984)(citing Champion v. Champion, 117 N.W.2d 107 (Mich. 1962)), including the letter's "appearance, contents, substance, internal patterns, or other distinctive characteristics taken in conjunction with circumstances." Iowa R. Evid. 901 (b)(4).

15. The circumstances here include the letter and envelope being obtained from a case file for a complaint filed by Erlinda Foster against the Page County Sheriff's Department. The case had been administratively closed. (Tr. at 753). The parties agreed that Ms. Foster lives in Clarinda, Iowa. (Tr. at 752).

16. The envelope is postmarked with the Clarinda, Iowa postmark which indicates it was mailed on July 30, 1987. Erlinda Foster's name, her return address in Clarinda, and a stylized capital letter "F" are given on a printed label in the upper left hand corner of the envelope. The envelope is addressed to the "Iowa Civil Right Commission" (sic) in care of "Mr. L. Martin." It is date stamped as being received by the Commission on July 31, 1987.

17. The letter, which is typewritten, is also date stamped as being received by the Commission on July 31, 1987. The salutation states "Dear Mr. Martin". In the first two paragraphs, the letter cites the complaint number, mentions that the complaint was administratively closed, and indicates her disagreement with such closure. She goes on to state reasons why she felt the closure was improper. The letter is not signed, but does have a closing stating "Thank you. Erlinda Foster."

18. Official notice is taken of the facts that (a) Louis Martin was employed as the Director of the Commission's Compliance Division during the 1986 fiscal year which ran from July 1, 1985 to June 30, 1986, Iowa Civil Rights Commission Annual Report for 1986; (b) that he was still employed with the Commission as a Public Service Executive III during part of the Fiscal Year 1988; Salary Book: List of Employees of the State of Iowa for the Period July 1, 1987 to June 30, 1988, and (c) that the Compliance Division has responsibility for doing the administrative reviews which may lead to a case being administratively closed. Iowa Civil Rights Commission Annual Reports for fiscal years 1986 and 1988. Fairness to the parties does not require that they be given an opportunity to contest these facts.

19. The contents and circumstances cited above are sufficient to support a finding that this letter is what it purports to be. The return address and postmark indicate that the letter came from Clarinda, which was acknowledged to be Ms. Foster's home. It is unlikely that the printed address label would have come from a source other than Ms. Foster. The consistency between the date stamps on the envelope and the letter, and between the name of the addressee given on the envelope and the person named in the salutation in the letter indicate that the letter was the one contained in the envelope.

20. The case number and the administrative closure are confidential information which would only be known to Commission staff, the Respondent, and Ms. Foster. See Iowa Code § 601A.15(4) and Iowa Admin. Code 161-3.2. Since the compliance division is responsible for administratively closing cases, it is logical that Ms. Foster's letter would be directed to Mr. Martin, the Director of that division to express her disagreement. These facts tend to demonstrate that Exhibit J is a letter from Erlinda Foster to Mr. Martin expressing her disagreement with the administrative closure of her case. Therefore, the objections to Exhibit J are overruled.